PEOPLE v. LACK

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Gerald LACK, Defendant-Appellant.

Decided: November 15, 2002

Present PINE, J.P., WISNER, HURLBUTT, KEHOE, and BURNS, JJ. Bonnie Burgio, Watertown, for Defendant-Appellant. Gerald Lack, Defendant-Appellant Pro se. Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of Counsel), for Plaintiff-Respondent.

 Defendant was convicted, following a jury trial, of various crimes committed against a former girlfriend who had procured an order of protection against him based on his prior criminal conviction involving threats of violence.   Defendant contends that County Court erred in permitting the People to introduce evidence of defendant's prior conviction and the tape recording of the threats underlying it as Molineux evidence because that evidence involved a previously charged, not uncharged, crime (see generally People v. Molineux, 168 N.Y. 264, 293-294, 61 N.E. 286).   That contention is based on a misreading of Molineux (see id.;   see also People v. Alvino, 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808;  People v. Avellanet, 242 A.D.2d 865, 662 N.Y.S.2d 345, lv. denied 91 N.Y.2d 868, 668 N.Y.S.2d 566, 691 N.E.2d 638).  Molineux applies to “evidence of other crimes” (Molineux, 168 N.Y. at 293, 61 N.E. 286) and clearly includes prior convictions (see e.g. Avellanet, 242 A.D.2d at 865, 662 N.Y.S.2d 345).   Nor is there merit to defendant's contention that use of a transcript as an aid to the jury while listening to the tape recording was improper (see People v. Williams, 281 A.D.2d 933, 722 N.Y.S.2d 683, lv. denied 96 N.Y.2d 869, 730 N.Y.S.2d 44, 754 N.E.2d 1127).   Further, the challenged evidence “was highly relevant to issues developed at trial and was not excessively detailed, and the court's instructions served to prevent any undue prejudice” (People v. Hernandez, 287 A.D.2d 267, 267, 730 N.Y.S.2d 712, lv. denied 97 N.Y.2d 729, 740 N.Y.S.2d 702, 767 N.E.2d 159).   Contrary to defendant's further contention, the use of the prior conviction did not violate the constitutional prohibition against double jeopardy.   The double jeopardy clause “protects only against the imposition of multiple criminal punishments for the same offense [emphasis omitted]” (Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450) and thus “bars successive prosecutions or punishments for the same criminal offense” (People v. Hall, 291 A.D.2d 143, 146, 738 N.Y.S.2d 782, lv. denied 98 N.Y.2d 651, 745 N.Y.S.2d 510, 772 N.E.2d 613).   Here, the jury was instructed that the evidence of defendant's prior conviction and conduct was not a basis for the instant charges but, rather, was evidence relevant to defendant's intent or motive in committing the acts that are the basis for the instant charges.   The jury is presumed to have followed those instructions (see People v. Fay, 85 A.D.2d 512, 513, 444 N.Y.S.2d 629).

 The court properly refused to order disclosure of the victim's confidential psychiatric records.   Those records “should be disclosed only when their confidentiality is significantly outweighed by the interests of justice” (People v. Felong, 283 A.D.2d 951, 952, 724 N.Y.S.2d 380 [internal quotation marks omitted];  see People v. Toledo, 270 A.D.2d 805, 806, 709 N.Y.S.2d 257, lv. denied 95 N.Y.2d 858, 714 N.Y.S.2d 10, 736 N.E.2d 871).   Here, “defendant's allegation that the records could impact upon the credibility of the witness failed to meet that test” (Felong, 283 A.D.2d at 952, 724 N.Y.S.2d 380).   Defendant failed to preserve for our review his contention that the court's response to the jury's request for a readback of the testimony was inadequate (see People v. Virgil, 266 A.D.2d 847, 698 N.Y.S.2d 801, lv. denied 94 N.Y.2d 886, 705 N.Y.S.2d 18, 726 N.E.2d 495).   In any event, “the court appropriately advised the jurors to narrow their request for readback” (People v. O'Kane, 237 A.D.2d 205, 206, 655 N.Y.S.2d 476, lv. denied 90 N.Y.2d 896, 662 N.Y.S.2d 439, 685 N.E.2d 220) and “clearly conveyed its willingness to abide by the requests of the jury” (People v. Deoleo, 295 A.D.2d 623, 623, 744 N.Y.S.2d 876;  see People v. Cottrel, 275 A.D.2d 644, 713 N.Y.S.2d 328, lv. denied 96 N.Y.2d 733, 722 N.Y.S.2d 800, 745 N.E.2d 1023).

Based on the evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, we conclude that defendant received meaningful representation from his third trial attorney (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defendant has failed to preserve for our review his contention that the conviction of attempted kidnapping in the second degree (Penal Law §§ 110.00, 135.20) is based on legally insufficient evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, that contention lacks merit (see >People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The verdict is not against the weight of the evidence (see id.).

 Contrary to the further contention of defendant, the court properly sentenced him as a second felony offender without conducting a hearing because he “did not ‘specify the particular allegation or allegations he wishe [d] to controvert’ or challenge the constitutionality of the underlying felony” (People v. Pane, 292 A.D.2d 850, 851, 738 N.Y.S.2d 799, lv. denied 98 N.Y.2d 653, 745 N.Y.S.2d 512, 772 N.E.2d 615).  “The failure to inform a defendant of the postrelease supervision component of a sentence does not, in and of itself, provide a basis for modifying the sentence” (People v. Housman, 291 A.D.2d 665, 667, 737 N.Y.S.2d 699, lv. denied 98 N.Y.2d 638, 744 N.Y.S.2d 767, 771 N.E.2d 840).   We have reviewed defendant's constitutional challenges to the imposition of postrelease supervision and conclude that they are without merit (cf.  Matter of Connelly v. New York State Div. of Parole, 286 A.D.2d 792, 729 N.Y.S.2d 808, lv. dismissed 97 N.Y.2d 677, 738 N.Y.S.2d 291, 764 N.E.2d 395;  see generally United States v. Huerta, 878 F.2d 89, 91-93, cert. denied 493 U.S. 1046, 110 S.Ct. 845, 107 L.Ed.2d 839).

 The court erred in directing that the term of imprisonment imposed on the count convicting defendant of criminal contempt in the first degree (Penal Law § 215.51[b][v] ) shall run consecutively to the term of imprisonment imposed on the count convicting him of aggravated criminal contempt (§ 215.52) because both crimes were based upon the same conduct (see § 70.25[2];  see also People v. Ramirez, 89 N.Y.2d 444, 451, 654 N.Y.S.2d 998, 677 N.E.2d 722;  People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212).   We note that any modification of the sentence with respect to those two counts would affect the aggregate sentence, and we further note that, although the remainder of the sentence is neither unduly harsh nor severe, the interplay of the sentences imposed on the various counts is complex (see e.g. People v. Losicco, 276 A.D.2d 565, 714 N.Y.S.2d 306, lv. denied 96 N.Y.2d 802, 726 N.Y.S.2d 380, 750 N.E.2d 82).   We therefore modify the judgment by vacating the entire sentence, and we remit the matter to Jefferson County Court for resentencing on all counts.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the entire sentence and as modified the judgment is affirmed and the matter is remitted to Jefferson County Court for resentencing on all counts.

MEMORANDUM: